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C.D.R. v. Wideman

Court of Appeals of Missouri, Western District, Fourth Division

July 5, 2017

C.D.R., Respondent,
v.
KELLY LUTHER WIDEMAN, Appellant.

         Appeal from the Circuit Court of Cole County, Missouri The Honorable Daniel R. Green, Judge.

          Before: Mark D. Pfeiffer, Chief Judge, and Lisa White Hardwick and Edward R. Ardini, Jr., Judges.

          Mark D. Pfeiffer, Chief Judge.

         Mr. Kelly Wideman appeals from the "Judgment of the Full Order of Protection-Adult" entered in favor of C.R.[1] by the Circuit Court of Cole County, Missouri ("trial court"). We affirm.

         Factual and Procedural Background[2]

         C.R. and Mr. Wideman were previously in a romantic or intimate relationship and had resided together. The relationship was tumultuous, including what C.R. described as physically and verbally abusive conduct by Mr. Wideman toward her, eventually leading to C.R.'s decision to end the relationship in 2015.

         Thereafter, C.R. felt physically threatened, harassed, and stalked by Mr. Wideman's conduct. Thus, she filed a petition seeking an order of protection against Mr. Wideman. On February 24, 2016, the trial court issued an ex parte order of protection. The trial court conducted an evidentiary hearing on March 3, 2016, where the parties appeared pro se and testified. The trial court entered a judgment on March 3, 2016, in which a full order of protection, effective until March 3, 2017, was issued in favor of C.R. against Mr. Wideman.

         Mr. Wideman hired counsel, who promptly filed a motion seeking to set aside the judgment; reopen the evidence to take additional evidence that Mr. Wideman wished to present; and reconsider the entry of the full order of protection. The circuit court granted the requested relief, conducting another evidentiary hearing on April 25, 2016, and setting aside the March 3, 2016 full order of protection. The trial court took the petition for full order of protection under advisement. The trial court also ordered that the ex parte order remain in effect pending the court's final ruling on the full order. Thereafter, the trial court issued its judgment on December 1, 2016, granting a full order of protection in favor of C.R. and against Mr. Wideman. The terms of the judgment expressly noted that the full order of protection would expire on May 1, 2017.

         Mr. Wideman appealed, arguing that the judgment was against the weight of the evidence and in excess of the trial court's statutory authority.

         Mootness Doctrine

         We first note that the trial court's judgment specifically denotes that the full order of protection will expire on May 1, 2017. Hence, the full order of protection in question expired during the pendency of Mr. Wideman's appeal and prior to its submission to this Court on appeal.

         "Generally, an appellate court does not decide moot issues." C.I.A. v. T.E., 423 S.W.3d 844, 845 (Mo. App. W.D. 2014). "Whether a case is moot is a legal question that the appellate court raises sua sponte on appeal." Id. "When a full order of protection has expired, any appeal of that order is moot, because there is no practical effect in vacating an order that has expired." Hail v. Hail, 380 S.W.3d 655, 656 (Mo. App. W.D. 2012) (internal quotation omitted).

         However, an appellate court "may consider the appeal if it raises a recurring issue of general public interest and importance and would otherwise evade appellate review." Id. (internal quotation omitted). And, in the context of an appeal from a full order of protection, this exception to the mootness doctrine is addressed by section 455.007, RSMo 2016:

Notwithstanding any other provision of law to the contrary, the public interest exception to the mootness doctrine shall apply to an appeal of a full order of protection which has expired.

         As there is no other provision of law to the contrary, we "shall" apply the public interest exception to the mootness doctrine to the trial court's judgment granting a full order of protection, and we will evaluate the substantive merit of Mr. Wideman's appeal.[3]

         Standard of Review

         "On appeal of a bench-tried case, the trial court's judgment will be affirmed unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law." Sauvain v. Acceptance Indem. Ins. Co., 437 S.W.3d 296, 302 (Mo. App. W.D. 2014). A challenge to the weight of the evidence "presupposes that there is sufficient evidence to support the judgment, " but examines the probative value of that evidence to induce belief. Ivie v. Smith, 439 S.W.3d 189, 205-06 (Mo. banc 2014). "In other words, 'weight of the evidence' denotes an appellate test of how much persuasive value evidence has, not just whether sufficient evidence exists that tends to prove a necessary fact." Id. at 206. "When the evidence poses two reasonable but different conclusions, appellate courts must defer to the [trial] court's assessment of that evidence." Id. We will overturn a trial court's judgment only in rare cases where we have a firm belief that the judgment is wrong, and only when the trial court "could not have reasonably found, from the record at trial, the existence of a fact that is necessary to sustain the judgment." Id. See also Sauvain, 437 S.W.3d at 302.

         In reviewing the record in an against-the-weight-of-the-evidence challenge, we defer to the trial court's factual findings "when the factual issues are contested and when the facts as found by the [trial] court depend on credibility determinations." Ivie, 439 S.W.3d at 206. We defer to the trial court's credibility determinations "because the [trial] court is in a better position to weigh the contested and conflicting evidence in the context of the whole case, " including weighing the demeanor, sincerity, and character of witnesses. Id. "Accordingly, we review the evidence in a light most favorable to the judgment, accept the evidence favorable to the judgment as true, and disregard any contradictory evidence." Sauvain, 437 S.W.3d at 303. "All fact issues upon which no specific findings are made shall be considered as having been found in accordance with the result reached." Rule 73.01(c).

         "When reviewing the record below, we are cognizant of, and defer to, the trial court's superior ability to evaluate the issues by the testimony and demeanor of the witnesses." McAlister v. Strohmeyer, 395 S.W.3d 546, 550 (Mo. App. W.D. 2013) (internal quotation omitted). "Because the trial judge is in the best position to gauge the credibility of the witnesses, in cases under the Adult Abuse Act, the discretion of the trial ...


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